Waititu v Boundaries Commission (IEBC) & 8 others (Civil Appeal 324 of 2013) [2014] KECA 615 (KLR)
The bottom line
#Kenya's Court of Appeal overturned the High Court and declared Kidero's 2013 Nairobi Governor election invalid, ruling Waititu's late-filed appeal was still valid.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal is competent in light of section 85A of the Elections Act, given that the record of appeal was filed more than 30 days after the High Court judgment but a certificate of delay was issued under Rule 82 of the Court of Appeal Rules
- 2.Whether the denial or curtailment of cross-examination of the respondents' witnesses on Forms 35 and 36 infringed the appellant's right to a fair trial
- 3.Whether the rejection of the appellant's plea for scrutiny and recount vitiated the judgment
- 4.Whether the High Court committed errors of law, including disregard of stare decisis (the Magara decision), errors on the county Form 36, and errors on the burden and standard of proof
- 5.Whether the costs should have been capped (the 4th and 5th respondents' cross-appeal)
Key legal issues
#Competency of the appeal: whether an election appeal filed more than 30 days after the High Court judgment, but with a certificate of delay, is competent
By majority (Kiage and G.B.M. Kariuki, JJA), the appeal was competent. Rule 35 of the Election Petition Rules imports the Court of Appeal Rules wholesale, so the proviso to Rule 82 operates: certified days taken to prepare proceedings are excluded from the 30 days in section 85A(a). No extension of time occurred - only a computation. Warsame JA dissented, holding section 85A(a) mandatory and Rule 82 incapable of reviving an extinguished right of appeal.
The majority reasoned that the Elections Act sets no procedure for filing election appeals; Rule 35 imports the Court of Appeal Rules without qualification, including Rule 82's certificate-of-delay proviso. Excluding certified days does not enlarge the statutory period but prevents the court's own delay defeating the right of appeal, consistent with Articles 48 and 50. The majority distinguished Maitha v Said, Laboso and Kimanzi because those cases were decided under a repealed Act that did not apply the Court of Appeal Rules, and in Kimanzi there was no certificate of delay.
Denial or curtailment of cross-examination on Forms 35 and 36
The trial judge's ruling confining cross-examination to the four corners of the witness affidavits was a fundamental error rendering the trial unfair; cross-examination is not confined to matters deposed to in chief, and the denial vitiated the judgment.
Kiage JA held there is no basis in the Constitution, the Elections Act or the Petition Rules for restricting cross-examination in electoral disputes to matters in affidavits; section 146(2) of the Evidence Act permits questions on any relevant and admissible matter. Documents deposited under Rule 21 are not automatically evidence, but the judge had discretionary power to admit them for cross-examination and wrongly refused. Citing R v Ndawd and Onwuka v Owolewa, he held that denial of cross-examination causes prejudice that cannot be discounted. G.B.M. Kariuki JA agreed that curtailment of the Returning Officer's cross-examination impeded a fair hearing.
Scrutiny and recount of votes
The trial judge erred in rejecting the appellant's targeted application for scrutiny; suo motu partial scrutiny did not cure the omission, and Rule 33(2)'s 'sufficient reason' requirement is an impermissible fetter on section 82(1) of the Elections Act.
Kiage JA, drawing on his dissent in Salat and the holding in Peter Gichuki King'ara, held that where irregularities and admitted errors are alleged, scrutiny is the mechanism to verify whether the will of the voters prevailed, and its denial left the judge without an evidential basis to conclude errors were minor. Warsame JA, dissenting, held scrutiny is discretionary, requires a laid basis, is a question of fact outside section 85A, and that the suo motu scrutiny cured any misdirection since the judge dealt with the discrepancies found.
Errors of law: county Form 36, stare decisis (Magara), burden and standard of proof
The trial judge misdirected himself: he wrongly found a 'gap in the law' on the county Form 36; he failed to follow or distinguish the binding Magara decision; and he failed to apply the shifting burden of proof principle in Raila v IEBC while importing an inapplicable beyond-reasonable-doubt standard.
Regulation 87(3) imposes the same duty of accuracy on the county returning officer as Regulation 87(2) on constituency returning officers, so the county Form 36 could be impugned. Stare decisis required the election court to follow or distinguish Magara, which involved a narrow margin and glaring irregularities absent here. On proof, the legal burden rests on the petitioner throughout but the evidential burden shifts; the appropriate standard is higher than a balance of probabilities for electoral offences but below beyond reasonable doubt, and a petitioner need only meet a prima facie standard to trigger the shift.
Impeachment of the judgment by a DVD recording of the oral rendition
The DVD material could not be admitted or relied upon; there is only one judgment of the election court, and a clandestine recording cannot be used to impeach a judge's integrity.
Warsame JA found the DVD unverifiable, unauthorised and a collateral attack on judicial dignity; the judge had made specific findings inconsistent with the alleged oral statement, and the slip rule would cure any inadvertent error. The allegation was raised over three months late without seeking the judge's response.
Capping of costs (cross-appeal)
The capping of the respondents' costs at KShs 2.5 million was not doctrinally wrong; the cross-appeal was dismissed as premature.
Kiage JA accepted that runaway costs against petitioners can deter the investigation of truth, and held the complaint would only be ripe once a bill of costs was drawn and taxed in a manner violative of the respondents' rights.
Legal principles established
#- In an election appeal from the High Court, where proceedings were bespoken in writing within time and copied to the opposite side, a certificate of delay duly issued under Rule 82 of the Court of Appeal Rules is conclusive and the certified days are excluded in computing the 30-day limit in section 85A(a) of the Elections Act.
- Cross-examination in election petitions is as potent as in any other proceedings: any relevant and admissible matter may be put in cross-examination, and an unjustified denial or curtailment of cross-examination is a denial of fair hearing that vitiates the judgment of the election court.
- A county returning officer is bound by Regulation 87(3) of the Elections (General) Regulations, 2012 to tally and announce results with the same duty of accuracy, simplicity, transparency and verifiability as a constituency returning officer; the county Form 36 must be filled with scrupulous care and there is no 'gap in the law' immunising it from examination.
- Section 83 of the Elections Act should not be applied as an uncritical shield for electoral non-compliance; whether non-compliance 'affected the result' must be assessed quantitatively against the margin between the winner and the runner-up, and the requirement of 'sufficient reason' for scrutiny in Rule 33(2) of the Election Petition Rules is an impermissible fetter on the discretion conferred by section 82(1) of the Elections Act.
Court orders
#- 1.The judgment and decree of the High Court given on 10th September 2013 is set aside in entirety
- 2.It is declared that Evans Odhiambo Kidero (4th respondent) and Jonathan Mweke (5th respondent) were NOT validly elected on 4th March 2013 as Nairobi County Governor and Deputy Governor respectively
- 3.The 1st, 2nd, 3rd, 4th and 5th respondents shall pay the appellant's costs of the appeal and of High Court Petition No. 1 of 2013
- 4.The 4th and 5th respondents' cross-appeal (cross-petition) is dismissed with costs to the appellant
- 5.A certificate of the determination shall issue forthwith pursuant to section 86(1) of the Elections Act
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Lead judgment. Held the appeal competent: the 30-day limit in section 85A(a) of the Elections Act must be read with Rule 82 of the Court of Appeal Rules (imported by Rule 35 of the Election Petition Rules), so certified days taken by the court to prepare proceedings are excluded. Found the trial judge erred in curtailing cross-examination on Forms 35 and 36, in rejecting scrutiny and additional evidence, in misdirecting himself on Form 36, burden of proof and stare decisis; allowed the appeal, set aside the High Court judgment and nullified the election of Kidero and Mweke; dismissed the cross-appeal on capped costs as premature.
In view of the views I have expressed herein, I find and hold that the appellant?s appeal is meritorious and is upheld.p. 94
Wrote the judgment
Separate judgment. Agreed the appeal was competent: Rule 82 of the Court of Appeal Rules and section 85A(a) of the Elections Act are 'symbiotic'; the court may exclude, via a certificate of delay, time taken to prepare proceedings, since a narrow construction would violate Articles 48 and 50. On the merits agreed the trial judge denied the appellant a fair hearing by curtailing cross-examination of the Returning Officer, refusing additional affidavits and scrutiny, amounting to a miscarriage of justice justifying nullification of the election; agreed with the orders proposed by Kiage JA.
In my view, there was miscarriage of justice which can only be redressed by allowing the appeal.p. 68
Wrote the judgment
Dissenting judgment. Held section 85A(a) mandatory: an election appeal must be filed within 30 days and Rule 82 of the Court of Appeal Rules cannot restore a right extinguished by statute; the appeal was incompetent and should be struck out. Obiter on the merits, he would have upheld the trial judge on scrutiny (suo motu scrutiny cured any misdirection), burden of proof (which remained on the petitioner given the 70,000-plus margin), cross-examination of undeposited forms, and the impeachment of the judgment via a DVD. Would have dismissed the appeal and cross-appeal with costs to the respondents.
In short, Rule 82 of the Court of Appeal Rules cannot give what the parent Act has rightly removed. The precursor to a competent appeal is filing it within 30 days. That was not the case hear, and consequently, this appeal is incompetent and ought to be struck out.p. 25
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 1 of 2013
- Jurisdiction invoked
- Article 164(3) of the Constitution of Kenya 2010 read with section 3(1) of the Appellate Jurisdiction Act (Cap 9) and section 85A of the Elections Act No 24 of 2011 (appeals from High Court election petitions on matters of law only, filed within 30 days)
Relief refused
#The 4th and 5th respondents' cross-appeal seeking reversal of the capping of their costs at KShs 2.5 million and a declaration that Rule 36 of the Election Petition Rules is null and void
The complaint was premature and speculative; it could only be adjudicated once a bill of costs was prepared and taxed in a manner violative of their rights
The appellant's prayer for a fresh election for the office of Nairobi County Governor
The majority nullified the election and issued a certificate of nullification under section 86(1) of the Elections Act rather than ordering a fresh election; the remedy of a fresh election was not among the orders made
Costs
The 1st, 2nd, 3rd, 4th and 5th respondents shall pay the appellant's costs of the appeal and of High Court Petition No. 1 of 2013; the 4th and 5th respondents' cross-appeal is dismissed with costs to the appellant. (Warsame JA, dissenting, would have ordered the appellant to bear the respondents' costs of the appeal and of the High Court.)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
b) It is declared that EVANS ODHIAMBO KIDERO the 4th Respondent herein and JONATHAN MWEKE the 5th |Respondent herein were NOT validly elected on 4th March 2013 as Nairobi County Governor and Deputy Governor respectively in the General election held on 4th March 2013.
a) The Judgment and decree of the High Court given on 10th September 2013 is set aside in entirety.
The certificate has not been impeached and in fidelity to law, I would exclude the said days with the result that the appeal before us was lodged within the time contemplated by the Elections Act and is therefore competent.
A denial of fair hearing by a trial court must inevitably invite a setting aside of the judgment.
I am persuaded that the requirement for sufficient cause in Rule 33(2) is inconsistent with Section 82(2) of the Act and represents an impermissible intrusion on the courts? grant of scrutiny when sought.
Had the learned Judge appreciated that the county Form 36 is required as a matter of law, to be filled with the same scrupulous care for accuracy and attention to detail, he would not have been so quick to dismiss the appellant?s complaints that there was no valid declaration of results for governor of Nairobi County.
A drip-drop diminution and leaking of integrity, accuracy and dependability of the electoral process unchecked and uncondemned is what leads to a flood and avalanche that imperils the very foundations of our democracy.
Its essence is that an electoral cause is established much in the same way as a civil case: the legal burden rests on the petitioner, but depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting.
Issues in the judgment
#The winning candidate's vote total is stated inconsistently within the judgment: the Gazette Notice is recorded as 692,483 votes in one judgment, while Kiage JA records 692,482 votes.
The margin between the candidates is described inconsistently: Warsame JA states the appellant lost by a margin of 74,644 votes and refers throughout to 'over 70,000 votes', while senior counsel for the appellant is recorded as describing the margin as 'below 70,000'.
The trial court's scrutiny outcome is described in tension: Kiage JA criticises the judge for rejecting scrutiny and holds his suo motu partial scrutiny insufficient, whereas Warsame JA records that scrutiny was ordered suo moto and that the judge 'correctly exercised his judicial discretion' in dealing with the discrepancies found.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Brek v Principal Kadhi – Malindi & 2 others (Civil Appeal E051 of 2022) [2026] KECA 55 (KLR)[2026] KECA 55 (KLR)30 Jan 2026applied
Cite this brief
#Cite this brief
Caselaw, "Waititu v Boundaries Commission (IEBC) & 8 others (Civil Appeal 324 of 2013) [2014] KECA 615 (KLR)", Case Analysis (2014). Civil Appeal No 324 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/615/eng@2014-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.